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Tuesday, September 06, 2011

Prop 8 at the California Supreme Court

Greetings, Prawfs community! It is an honor to be back. Thank you to Dan and the Prawfs team for having me on this month. I enjoyed speaking with and learning from all of you during my last stint earlier this year and I know this will once again be a rewarding experience.

I am Fellow/VAP at the California Western School of Law in San Diego, California and I am currently on the market (pardon the shamless plug!). My research focuses on free speech on the Internet, social networking behavior and online anonymity. I am in the middle of a multi-stage project on cyberbullying in schools.

My posts this month will indeed touch on technology and speech, but also on gay rights, a passion and interest that underlies much of my work. Hopefully, all posts will also include a healthy dose of fun, humor and insight, but I leave those judgments to you, dear Reader.

At 10 am Pacific (1 pm Eastern), the California Supreme Court will hear arguments in Perry v. Brown, the federal suit challenging the constitutionality of California's ban on same-sex marriage. You can watch the argument live here: www.calchannel.com. The case had already made its way to the Ninth Circuit some months ago, but because a central issue in the case is whether initiative proponents have standing to defend the initiative in federal court when the state declines, the Ninth Circuit certified a question to California's highest court. The question is: Per Arizonans for Official English v. Arizona and Karcher v. May, does California state law grant standing in this case to initiative proponents?

Today's hearing is a profound example of a Federal Court's class in action and a recognition that University of Washington Professor Peter Nicholas is right when he argues that process -- in this case, standing -- has been and will continue to be salient in determining the success or failure of litigating gay rights at the federal level.

Ted Olson will argue that the initiative proponents -- gathered together under the ironically named organization, "protect"marriage.com -- lack standing as a matter of California state law. It seems to me -- and to Mr. Olson and to Dean Chemerinsky and to Professor Tribe, among others who have written about this issue -- that this is a losing battle for "protect"marriage.com.

As the Supreme Court stated in Arizonans:

Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII's state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court.

The last line is what the certified question to the California Supreme Court is about. The Ninth Circuit wants to know if there is anything in state law -- California's "citizen suit provision" -- that would "support standing" for "protect"marriage.com. But, as the Court implies, even if there is, that is not the end of the story. That is, standing as a matter of state law would be a necessary, but insufficient piece of the puzzle. As a matter of federal law, those seeking to defend Prop 8's ban on same-sex marriage must demonstrate a "direct stake in the outcome." The initiative proponents cannot do that. They cannot show how their marriages will be affected one iota from the state recognizing same-sex unions. Nor can they show how they would be specifically harmed by such recognition. The only party that can demonstrate a harm -- the State -- believes that being forced to issue marriage licenses and recognize the love between two committed gay Californians is a good thing!

Posted by Ari Ezra Waldman on September 6, 2011 at 09:54 AM in Constitutional thoughts, Current Affairs, Judicial Process | Permalink


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A veto over the people's vote for Proposition 8 would be an obstruction of Justice.

Posted by: Nancy D. | Sep 7, 2011 7:06:10 PM

I think Prop 8 is unconstitutional and support same sex marriage legally and otherwise. But, though the standing claim very well might be weak, I'm uncomfortable with the result (which might not matter legally, sure, I'm just saying). California has a ballot method that provides an alternative when the people of the state believe the state government itself is not adequately offering change. If the result can be mooted because the same government rejects the result and is the only one with standing to defend what they didn't want in the first place (which is why the alternative route is there), what's the point?

Posted by: Joe | Sep 7, 2011 9:44:09 AM

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